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Resources For

Pay & Leave Claim Decisions

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Office of the General Counsel

OPM Ref. #: S000512
February 3, 1998

[Agency address]

Dear [xxx]:

This replies to your September 11, 1997 letter requesting an
opinion regarding the use of administrative leave in the
circumstances described below.

You state that your agency has established a Health Promotion
Program (HPP) to encourage physical fitness for the agency's
employees. You note that a cost benefit analysis of programs such
as the HPP, which measured such expenses as health insurance claims
and sick leave, shows a return of $1.25 for every $1.00 spent. To
promote this program, you would like to authorize employees to use
official time to engage in physical exercise in one-hour sessions
three times a week as part of a total fitness program You note that
the employees' participation will be monitored to ensure
compliance.

There is no specific statutory authority authorizing or
proscribing an employee's release from duties without loss of pay
or charge to leave, generally referred to as either excused absence
or administrative leave. Rather, an agency's use of this type of
leave is bounded by two equally vague statutes. The inherent
authority to excuse employees from their duties is inferred from 5
U.S.C. 301, which states that an agency head "may prescribe
regulations for the government of his department (and) the conduct
of his employees . . . ." This authority, though, is not
unfettered. The salaries of Federal employees are paid from
appropriated funds, and appropriated funds "shall be applied only
to the objects for which the appropriations were made except as
otherwise provided by law." 31 U.S.C. 1301

The General Accounting Office (GAO) has weighed these statutes
on several occasions. See
71 Comp. Gen. 469 (1992) and cases cited therein. We commend these
decisions to you for their guidance, but, we note that GAO
decisions are not binding on Executive agencies. From OPM's
perspective, in the absence of any government-wide statutes or
regulations, the only legal test for questions such as yours is
whether the proposed use of administrative leave is a clear abuse
of discretion or for an activity expressly prohibited by law.
Ultimately, it is the responsibility of each department or agency
head to balance support for employees' participation in activities
such as physical fitness programs with the need to ensure that
employees' work requirements are fulfilled and that agency
operations are conducted efficiently and effectively.

Based on these standards, we have no objection to your use of
administrative leave for the purposes described in your September
11 letter. We note that 5 U.S.C. 7901 authorizes agency heads to
establish programs "to promote and maintain the physical and mental
fitness of employees". The GAO has opined that this authority
authorizes agencies to use appropriated funds to buy access for
their employees to the exercise facilities of private fitness
centers. 70 Comp. Gen. 190 (1991). Thus, your program is consistent
with previously approved efforts to promote health and fitness.

Accordingly, we have no objection to the use of administrative
leave as described in your request.